Defining Terrorism in International Law So As To Foster The Protection of Human Rights Adam-Duchemann RJOI-16-libre PDF

Doctrine
DROIT INTERNATIONAL
DEFINING TERRORISM IN INTERNATIONAL

LAW SO AS TO FOSTER THE PROTECTION OF
HUMAN RIGHTS
Rsum :
Chacun de nous a dj employ le mot terrorisme . Mais quest-ce que le terrorisme ? Bien
que ce soit un phnomne trs ancien, il ny a pas au niveau international de dfinition du terrorisme.
Ce vide juridique a fait quau lendemain des attaques du 11 septembre 2001 le Conseil de Scurit
des Nations Unies a pu adopter des rsolutions portant force de droit incitant les Etats combattre le
terrorisme par tous les moyens . Cette approche jusquau-boutiste a t lourde de consquences
sur la protection du droit international des droits de lhomme au niveau national et international.
Cet article a pour objectif de dmontrer quaux fins dviter que la diffrence entre le
contreterrorisme et le terrorisme ne demeure quune question de point de vue, il est primordial non
seulement que la communaut internationale saccorde sur une dfinition unique et universellement
contraignante du terrorisme, mais galement quelle raffirme que la lutte contre le terrorisme ne peut
se faire que dans le respect plein et entier du droit international des droits de lhomme.
Summary:
Each and every one of us has spoken the word terrorism. But what does it mean? Despite the
fact that its a very old phenomenon, there is no definition of terrorism at the international level. This
legal black hole has enabled the United Nations Security Council in the aftermath of the 11
September 2001 attacks to adopt resolutions urging States to combat terrorism by all means. This
hard-line approach was fraught with consequences on the protection of international human rights at
both national and international level.
The aim of this article is to demonstrate that, so as to that the difference between terrorism and
counterterrorism be merely a matter of perspective, it is of the utmost importance that the
international community clearly and unequivocally define terrorism and counterterrorism all the while
reasserting their intertwinement with human rights.
The search for a legal definition of terrorism in some ways resembles

the quest for the Holy Grail: periodically, eager souls set out, full of
purpose, energy and self-confidence, to succeed where so many others
before have tried and failed. Some, daunted by the difficulties and
dangers along the way, give up, often declaring the quest meaningless.
Others return claiming victory, proudly bearing an object they insist is
the real thing but which to everyone else looks more like the same old
used cup, perhaps re-decorated in a slightly original way1
Human rights are not a luxury only for good times. They must be upheld
always, including in times of terror and insecurity2
Osama Bin Laden was killed on 13 May 2011 in Pakistan by American forces.
He is the man at the origin of the event that marked the beginning of the 21st century
and who brought terrorism to the forefront of international attention, making the
word terrorism part of our everyday vocabulary. Yet, even though everyone has
been listening to, speaking about or reading the word terrorism on a daily basis for
over a decade now, no one really knows what it means. Journalists, by labeling
regular criminal acts or even acts that are lawful under international humanitarian law
as terrorist, cast further shadow on this already elusive phenomenon.
Terrorism however, is not a new phenomenon. Its origin can be traced back to
Antiquity, when the Zealots during the first century and the Hashshashins from the
11th to the 13th century murdered their enemies and spread fear to achieve their goals3.
Scholars agree that modern terrorism was born during La Terreur, the period of the
French Revolution between mid 1793 and July 1794 when the ruling Jacobin faction,
headed by Robespierre, executed anyone considered a threat to their regime. As a
result, the first meaning of the word terrorism as recorded by the Acadmie
Franaise in 1798, was system or rule of terror4. Terrorism is thus a widely used
term, multifaceted in reach and scope, so much so that even the international
community has not agreed on a fully functional comprehensive definition of
terrorism yet.
This legal black hole led to the international War on terror subsequent to the
11 September 2001 attacks being waged in a way that was disruptive to human rights.
This human rights-abusive international War on terror was launched by the United
Nations Security Council (SC) on the impulse of the United States with SC Res 13685
and 13736, which recognized that acts of terrorism were threat[s] to international
peace and security that needed to be fought by all means, including military
intervention through the inherent right of individual or collective self-defense. The
gravity of the threat posed by terrorism in the aftermath of 9/11 was no excuse for the
international community to part from public international law because it was
considered inconvenient. The deviation of the boundary between law enforcement
1
G. LEVITT, Is Terrorism Worth Defining? , ONULR, 1986, vol. 13, p. 97.

M. SHARMA, Human Rights in a Globalised World: an Indian Diary, New Delhi, Sage Publications, 2010,
p. 7.
3
Encyclopedia Of World History: Crisis and Achievement 1900 to 1950, vol V, Golson Books, 2008, xxv.
4
For more information on the history of terrorism, read A. BLIN, G. CHALIAND, Histoire du terrorisme : de
lantiquit Al Qaida, Paris, Bayard, 2006, 718 p.
5
UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368.
6
2
RJOI 2013 n 16
and armed conflict while dealing with terrorism has had lots of consequences as
regards human rights protection7. It has been made possible by the absence of an
internationally recognized and binding definition of terrorism, despite the
international communitys efforts since 19378.
So as to avoid that the difference between terrorism and counterterrorism be
merely a matter of perspective, it is of the utmost importance that the international
community clearly and unequivocally define terrorism and counterterrorism all the
while reasserting their intertwinement with human rights.
A study of the theoretical approach to defining terrorism (I) is interesting
because not only does it highlights the intertwinement of terrorism and human rights,
but also because it sets the framework for a study of the shortcomings of legal
definitions of terrorism (II).
I.- Theoretical definition of terrorism

The International Covenant on Civil and Political Rights (ICCPR) recognizes
in its preamble that the ideal of free human beings [is to enjoy] civil and political
freedom and freedom from fear []9. Terrorism, relying on the instilling of fear is
thus antithetical with the theological interpretation of the ICCPR. Furthermore,
terrorists jeopardize several human rights protected in various international human
rights conventions.
Terrorism has been part of the international agenda for nearly a decade, but
there is still no consensus on an internationally recognized and unequivocal definition
of the term. In order to further the reflection on the issue of defining terrorism, it is
interesting to study what are the avenues that have been under the scrutiny of legal
scholars (A) before studying what the very substance of terrorism is; in other words
the extent to which it violates human rights (B).
A.- Formal approach
Scholars have been working on a definition of terrorism for decades now.
For commentaries on this shift from the law-enforcement to the armed conflict paradigms, see F. MGRET,
War? Legal Semantics and the Move to Violence , EJIL 2002, vol.13, n 2, p. 361-399 ; S.
SCHORLEMER, Human Rights: Substantive and Institutional Implications of the War Against Terrorism ,
EJIL 2003, vol. 14, n 2, p. 265-282 ; J. FITZPATRICK, Speaking Law to Power : The war Against
Terrorism and Human Rights , EJIL 2003, vol. 14, p. 241-264 ; A. CASSESE, Terrorism is Also Disrupting
Some Crucial Legal Categories of International Law , EJIL 2001, vol.12, n 5, p. 993-1001.
8
See infra, part II-B.
9
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR), emphasis added.
3
RJOI 2013 n 16
Schmidt and Jongman in 1988 referenced 109 definitions of terrorism10. The first
thing that comes to mind is the important number of definitions that have been
cataloged in 1988. Levitt in 1986 commented: The search for a legal definition of
terrorism in some ways resembles the quest for the Holy Grail: periodically, eager
souls set out, full of purpose, energy and self-confidence, to succeed where so many
others before have tried and failed11.
As a matter of fact, legally defining terrorism is far from being an easy task.
Even though everyone has a vague idea of what terrorism is, one has much trouble
outlining what it is exactly. There is no question whether the 9/11 attacks against the
United States of America were terrorist attacks; yet fully grasping the notion
terrorism is very difficult.
1/ Inductive vs. deductive definition
Levitt identified two different ways of defining terrorism: the deductive
method and the inductive method. On the one hand, deductive definitions of
terrorism have three elements: (1) a substantive element (enumeration of deeds
considered acts of terrorism), (2) the intent element (explicit mention that the act was
intended) and (3) the jurisdictional element (towards whom the terrorist act is
directed)12. On the other hand, the inductive method relies upon a relatively precise
description of the conduct constituting the substantive element and omits the political
intent element that characterized the deductive approach13. In other words, while
inductive definitions aim at defining what a terrorist act is, deductive definitions try
to answer the broader question of what terrorism is. The substantive element almost
always refers to the use of violence and force. In their 1988 study, Schmidt and
Jongman found that violence and force appear in 83.5% of the 109 definitions of
terrorism, being by far the most recurrent theme14. The international community has
endorsed the inductive method by focusing merely on the substantive and
jurisdictional element. This resulted in the adoption of sectoral conventions on
terrorism.
To this date there are thirteen sectoral international conventions on terrorism
focusing on specific acts of terrorism,15 among which the 1973 Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons,
10
A. SCHMIDT, A.J. JONGMAN, Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases,
Theories and Literature, New Brunswick, Transaction books, 1988, p. 5-6.
11
G. LEVITT, Is Terrorism Worth Defining? , ONULR 1986, vol. 13, p. 97.
12
Amongst the documents having adopted a deductive definition of terrorism, Levitt cites the 1937 League
of Nations Convention for the Prevention and Suppression of Terrorism and the 1972 U.S. Draft Convention
on Terrorism.
13
Id. p. 109
14
Theories and Literature, New Brunswick, Transaction books, 1988, p. 5-6.
15
For the list of those conventions, see
http://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml&menu=MTDSG.
RJOI 2013 n 16
including Diplomatic Agents, the 2005 International Convention for the Suppression
of Acts of Nuclear Terrorism, or the 1997 International Convention for the
Suppression of Terrorist Bombings. Art.1.1 of the aforementioned 1973 Convention
is the jurisdictional element referred to by Levitt, as it states against whom the
terrorist act in question (i.e. crime against internationally protected persons) is
directed, and Art.2.1 describes the offenses considered as terrorist crimes. Likewise,
Articles 2 of the 2005 International Convention for the Suppression of Acts of
Nuclear Terrorism and of the 1997 International Convention for the Suppression of
Terrorist Bombings set forth the offenses targeted in the conventions16.
Violence is once again present in both conventions against terrorism, validating
Schmidt and Jongmans study. As a matter of fact, all of the thirteen international
conventions on terrorism listed by the United Nations connect terrorism with the use
or threat of use of force and violence 17 . By thus focusing on violence as an
outstanding feature of terrorism, this approach enables States to find consensus by
avoiding the political aspect of terrorism. The important advantage of the inductive
method is that it avoids political conflict over basic definitional principles [],
permitting textual agreement to be reached18.
2/ Prominence of motive
John Dugard19 considered in 1974 that an ideal definition of terrorism should
expressly state that motive is irrelevant in determining whether an act of terrorism
has been committed20. What mattered by then and throughout the 1970s was the
nature of the act, and who the targets were. Most scholars have now shifted position
on the issue, considering that a workable definition of terrorism should comprise the
motive element. The absence of the motive element in international conventions is, as
mentioned earlier, due to the need to reach consensus. States did not however discard
deductive definitions of terrorism, as many of them use such definitions at the
national level21.
16
Art. 2-1 of both conventions reads Any person commits an offence within the meaning of this convention
if that person [].
17
See for example Art. 2.1.a of the International Convention for the Suppression of Acts of Nuclear
Terrorism : Possesses radioactive material or makes or possesses a device:
(i) With the intent to cause death or serious bodily injury; or
(ii) With the intent to cause substantial damage to property or to the environment.
18
Theories and Literature, New Brunswick, Transaction books, 1988, p. 102.
19
Currently a South African professor of international law, John Dugard has served as Judge ad hoc on the
International Court of Justice and as a Special Rapporteur for both the former United Nation Commission on
Human Rights and the International Law Commission.
20
J. DUGARD, International Terrorism: Problems of Definition , RIIA 1974, vol. 50, n 1, p. 80.
21
Some national definitions of terrorism will be studied in Part II-A. The United States 1978 Foreign
Intelligence Surveillance Act (codified and amended at 50 USC 1801, 1982) is a perfect example of
deductive method. Paragraph 1 makes up the substantive element, paragraph 2 the intent element and
paragraph 3 the jurisdictional element.
5
RJOI 2013 n 16
Boaz Ganor considers that including the motive element in the definition of
terrorism is of prime importance22, as a violent activity against civilians that has no
political aim is, at most, an act of criminal delinquency, a felony, or simply an act of
insanity unrelated to terrorism 23 . As for the author of Defining Terrorism in
International Law, he uses the phrase public motive instead of political aim in his
definition of terrorism: a terrorist act is committed not only where it has a political
purpose, but wherever there is a public motive, aim, objective, or purpose broadly
defined: political, ideological, religious, ethnic or philosophical24.
The use of public motive better fits terrorism in the sense that terrorists resort
to terrorism not only to gain political power, but also to achieve other goals like
imposing their ideology upon a population. The question of motive is one of the
reasons for which the adoption of a universally recognized definition of terrorism has
been stalled for years, despite the United Nations continuous efforts to elaborate the
Comprehensive Convention on International Terrorism since 199625.
3/ Types of terrorism
Scholars have identified three different kinds of terrorism, depending on
whether it is sponsored (b) or performed by a State (a) or a sub-State entity (c).
a/ State terrorism
Most of the scholarly work on terrorism deals with what the former Special
Rapporteur to the Commission on Human Rights calls sub-State terrorism, and so
do conventions on terrorism, eluding the question of State terrorism. Nonetheless
the first occurrence of terrorism was organized by the State26.
The 2001 report of the Commission on Human Rights gives examples of
regimes of terror, amongst which the Stalinist regime in the Soviet Union between
1929 and 1946, and Hitlers Nazi Germany that orchestrated the genocide of the
Jews and Gypsies and the mass slaughter of Slavic people between 1933 and 194527.
According to the Special Rapporteur, regimes of terror are characterized by such
actions as the kidnapping and assassination of political opponent of the government
22
Boaz Ganor was the founder of the International Institute for Counter-Terrorism (I.C.T.) in 1996. Located
in Israel, the ICT is an independent think tank providing expertise in terrorism, counter-terrorism,
homeland security, threat vulnerability and risk assessment, intelligence analysis and national security and
defense policy: http://www.ict.org.il/AboutICT/AboutUs/tabid/55/Default.aspx, accessed on Apr. 12, 2011.
23
B. GANOR, Defining Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter? , PPR 2002,
vol. 3, n 4, p. 294.
24
B. SAUL, Defining Terrorism in International Law, Oxford Monographs in International Law, 2006, p. 61.
25
See Part II-B for more information on the Comprehensive Convention on International Terrorism.
26
UNCHR (Sub-Commission), Report by Special Rapporteur Kalliopi K. KOUFA on Terrorism and Human
Rights , UN Doc E/CN.4/Sub.2/2001/31 (2001).
27
Id. para. 42.
RJOI 2013 n 16
by the police []; systems of imprisonment without trial [].28 Governments of

terror therefore rely on human rights violations to assert their authority. Terror is
planned and operated through human rights violations by the National State on its
own territory and population.
b/ State-sponsored terrorism
State-sponsored terrorism is different from State terrorism in that the State
resorts to terrorism to achieve strategic ends in circumstances where the use of
conventional armed forces is deemed inappropriate, ineffective, too risky, or too
difficult 29 . In other words, State-sponsored terrorism is sometimes used to
circumvent jus ad bellum. State-sponsored terrorism can be classified into two
categories according to their level of involvement in terrorism30.
On the one side, States supporting terrorism 31 provide financial aid,
ideological support, military or operational assistance32. The U.S. Department of
States 2009 Country Report on Terrorism incriminates Cuba, Iran, Sudan and Syria
of supporting terrorists. This report considers Iran as the most active sponsor of
terrorism: Irans financial, material, and logistic support for terrorist and militant
groups throughout the Middle East and Central Asia had a direct impact on
international efforts to promote peace, threatened economic stability in the Gulf and
undermined the growth of democracy33.
On the other side, States perpetrating terrorism carry terrorist acts abroad
through their own official bodies members of their security forces or their
intelligence services, or their direct agents. In other words, this refers to States
intentionally attacking civilians in other countries in order to achieve political aims
without declaring war34.
This kind of terrorism is qualified as State-directed by the United States
Department of Defense (DOD), which it describes as a terrorist group that operates
as an agent of a government, receiving substantial intelligence, logistic, and
operational support from the sponsoring government; e.g., Hezbollah
28
Id. para.43
R.S. CLINE, A. YONAH, Terrorism as State Sponsored Covert Warfare, Hero Books, 1986, p. 164, qtd. in
Countering State-Sponsored Terrorism, ICT Papers, 2007, n 1, available at
http://www.ict.org.il/Articles/tabid/66/Articlsid/701/currentpage/34/Default.aspx
30
Ganor actually distinguishes three different kinds of State-sponsored terrorism. We shall however only
bring up two of those categories, since the difference he sets forth between States operating terrorism and
States perpetrating terrorism is minimal.
31
This appellation is also employed by the U.S. Department of Defense, in Joint Publication 3-07.2,
Antiterrorism, April 2006, p. 35.
32
B. GANOR, Defining Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter? , PPR 2002,
vol. 3, n 4, p. 299.
33
United States Department of State, Country Reports on Terrorism 2009, Chapter 3: State Sponsors of
Terrorism, 2010, p. 191-196, available at http://www.state.gov/documents/organization/141114.pdf
34
Ibid.
29
RJOI 2013 n 16
organization35. In the end, the main difference between State terrorism and Stateperpetrated terrorism stands in the location of said act: at home on its own population
for State terrorism, or on foreign soil for State-perpetrated terrorism.
c/ Sub-State terrorism
Sub-State terrorism is carried out by private actors, as opposed to the public
actors in State terrorism. Sub-state terrorism fosters on publicity for its cause, while
State-sponsored terrorism avoids it. The U.S. Department of Defense calls it nonState-supported terrorism, namely a terrorist group that operates autonomously,
receiving no significant support from any government36. Nevertheless, the number
of affiliates to a group does not matter, since even a single individual can take part in
sub-State terrorism. From then on when the word terrorism will be used in this
article, the reader shall understand sub-State terrorism.
B.- Substantial approach
The 1999 preliminary report of the Commission on Human Rights entitled
Terrorism and human rights noted that [l]ittle, if any, attention has been given to
the link between terrorism and human rights37. Yet, this link is undeniable since the
very essence of terrorism is to jeopardize human rights. Numerous international
instruments aiming at the protection of human rights exist;38 this allows human rights
to exist by themselves, thus entitling States to protect a right that has acquired the
character of customary norm of international law, without necessarily being a party to
a treaty.
A customary norm of international law emerges when a provision has
generated a rule which has passed into the general corpus of international law, and
is now accepted as such by the opinio juris and has become binding even for
countries which have never, and do not, become parties to a given Convention39.
Such norms are recognized by Art.38 para.1 of the Statute of the International Court
of Justice. Nevertheless, a customary norm of international law cannot serve as a
legitimization for human rights violations, as Art.5 para.2 of the 1966 International
Covenant on Civil and Political Rights (ICCPR) provides40 : There shall be no
restriction upon or derogation from any of the fundamental human rights recognized
or existing in any State Party to the present Covenant pursuant to law, conventions,
35
Joint Publication 3-07.2, Antiterrorism, United States Department of Defense 2006, p. 35, available at
http://file.wikileaks.info/leak/us-antiterrorism-jp3-07-2-2006.pdf
36
Ibid.
37
Rights , UN Doc E/CN.4/Sub.2/1999/27 (1999), cons. 16.
38
http://www2.ohchr.org/english/law/
39
M.K. SINHA, Implementation of Basic Human Rights, Delhi, Manak Publications, 2002, p. 28.
40
Art 5 para. 2 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) is
almost identical to this article and meaning, only the wording is different.
RJOI 2013 n 16
regulations or custom on the pretext that the present Covenant does not recognize
such rights or that it recognizes them to a lesser extent41. This paragraph entails the
supremacy of human rights since, would a customary human right enter in conflict
with any other customary norm, the customary human right would prevail.
Individuals are not subjects of general international law; therefore the
International Bill of Rights and the core Human Rights Treaties do not legally bind
them. Art. 10 of the United Nation Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms provides: No one shall
participate, by act or by failure to act where required, in violating human rights and
fundamental freedoms and no one shall be subjected to punishment or adverse action
of any kind for refusing to do so42. The vocabulary used in this article is clearly
addressed to individuals who have an obligation even though that obligation is not
legal as individuals are not subjects of international law to abstain from
participating in human rights and fundamental freedom violations. Common Art.5,
para.1 of the ICCPR and ICESCR, which is very similar to Art.30of the UDHR43,
stipulates: [n]othing in the present Covenant may be interpreted as implying for any
State, group or person44 any right to engage in any activity or to perform any act
aimed at the destruction of any of the rights or freedoms recognized herein, or at
their limitation to a greater extent than is provided for in the present Covenant.
While the aforementioned Declaration pertains to soft law, Art. 5 is part of
the internationally recognized Covenant, which is a step further towards a
customarization of the individual responsibility through international human rights
instruments. There is an international individual liability as regards the most serious
crimes established by the International Criminal Court (ICC)45. The ICC however is
to be used in complement with national criminal jurisdictions, which means that
States have a duty to enforce human rights and prosecute any violator through their
own jurisdictions.
It is therefore relevant to study human rights violations by terrorists in the light
of the international human rights instruments because of the drip-down effect and
41
Emphasis added.
Emphasis added.
43
Art. 19 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms UN Doc
A/RES/53/144 (1999) is identical to art.30 of the Universal Declaration of Human Rights (adopted 10
December 1948) UNGA Res 217 A(III) (UDHR).
44
Emphasis added.
45
Art. 5 of the Rome Statute establishing the ICC provides: The jurisdiction of the Court shall be limited to
the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in
accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) The Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
42
RJOI 2013 n 16
their impact on national criminal law.

1/ Violation of universally recognized non derogable rights
Most international instruments protecting human rights contain derogation
clauses that enable State parties to derogate from their obligations during a state of
emergency or during war. Art.4 of the International Covenant on Civil and Political
Rights (ICCPR) permits State parties to derogate from 18 articles in times of
officially proclaimed emergencies46. General Comment No. 29 of the Human Rights
Committee47 gives two conditions before States can invoke the state of emergency:
the situation must amount to a public emergency which threatens the life of the
nation, and the State party must have officially proclaimed a state of emergency48.
Paragraphs 3 and 4 of General Comment No. 29 further provide respectively
that [n]ot every disturbance or catastrophe qualifies as a public emergency which
threatens the life of the nation and that the derogations have to be strictly required
by the exigencies of the situation49. Art.4(2) of the ICCPR does not admit any
derogation with regard to the right to life; the right not to be subjected to torture or
to cruel, inhuman or degrading treatment or punishment; the right not to be held in
slavery or servitude; the right not to be imprisoned on the ground of inability to fulfill
a contractual obligation; right against an ex post facto law; the right to recognition
everywhere as a person before the law, and the right to freedom of thought,
conscience and religion50. The European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR) 51 and the American Convention on
Human Rights52 contain similar provisions protecting the irreducible core rights,
also known as fundamental rights. Those fundamental rights are also protected
under national constitutions. Part III (Articles 12 to 35) of the Indian Constitution is
dedicated to the fundamental rights. Likewise, the American Bill of Rights, which is
46
M.K. SINHA, Respect of Human Rights in Time of State of Emergency: International and National
Perspectives , IJIL, 2007, vol. 47, p. 226.
47
UNHRC, General Comment 29 on Article 4, International Covenant on Civil and Political Rights ,
U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001).
48
Id., para.1.
49
Ibid.
50
Articles 6, 7, 8(1) and (2), 11, 15, 16 and 18 respectively ; M.K. SINHA, Respect of Human Rights in
Time of State of Emergency: International and National Perspectives , IJIL, 2007, vol. 47, p.p. 228-229.
51
Art.15 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome,
4.XI.1950) provides: In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law.
52
Art. 27(1) of the American Convention on Human Rights (22 November 1969) provides: In time of war,
public danger, or other emergency that threatens the independence or security of a State Party, it may take
measures derogating from its obligations under the present Convention to the extent and for the period of
time strictly required by the exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law and do not involve discrimination on the ground of race,
color, sex, language, religion, or social origin.
RJOI 2013 n 16
10
part of the American Constitution, protects those fundamental rights.

Notwithstanding the customary character of Art. 4 ICCPR and the obligation it
imposes upon States, the Human Rights Committee in General Comment 29 stated
that the non-derogable nature of those rights make them similar to, but not identical
with peremptory norms of international law; norms from which no derogation is
permitted53. However, the category of peremptory norms extends beyond the list of
non derogable provisions as given in article 4, paragraph 254. The Human Rights
Committee asserted that the following additional rights cannot legitimately be
derogated from in any circumstance: all persons deprived of their liberty [are to] be
treated with humanity and with respect for the inherent dignity of the human
person 55 ; taking of hostages, abductions or unacknowledged detentions are
prohibited; the rights of persons belonging to minorities are to be protected;
deportation or forcible transfer of population without grounds permitted under
international law is prohibited ; propaganda for war, [] advocacy of national,
racial or religious hatred that would constitute incitement to discrimination, hostility
or violence by a State is prohibited56; and judicial guarantees have to be protected.
This points to Art. 6 in connection with Art.14 and 15 of the ICCPR57.
The 1969 Vienna Convention on the Law of Treaties introduces the notion of
peremptory norms of international law. Art.53 of the same convention provides
that [] a peremptory norm of general international law is a norm accepted and
recognized by the international community of states as a whole as a norm from which
no derogation is permitted [].
This raises the question whether violations of jus cogens by non-state actors
place a duty upon States, or merely give them certain rights to proceed against
perpetrators of such crimes58. In other words, does the concept of obligatio erga
omnes carry with it a legal-binding obligation? Authors have agreed that the
implication of jus cogens are those of a duty and not of optional rights, otherwise jus
cogens would not constitute a peremptory norm of international law59. Art. 2 para.1
of the United Nations Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized
Human Rights and Fundamental Freedoms60 provides that [e]ach State has a prime
responsibility and duty to protect, promote and implement all human rights and
53
Art. 53 of the Vienna Convention on Treaties (adopted 23 May 1969, entered into force 27 January 1980)
United Nations, Treaty Series, vol. 1155, 1969, p. 331.
54
M.K. SINHA, Implementation of Basic Human Rights, Delhi, Manak Publications, 2002, p. 28.
55
U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para.13 (a).
56
Id. para. 13 (b) to (e).
57
Id. para.15.
58
C. BASSIOUNI, International Crimes: Jus Cogens and Obligatio Erga Omnes , LCP, 1996, vol. 59, n
4, p. 65.
59
Ibid.
60
UN Doc A/RES/53/144 (1999)
11
RJOI 2013 n 16
fundamental freedoms. Since the violation of peremptory norms of international law

leads to jus cogens crimes imposing a duty upon States to seek the prosecution of the
violator and that art. 5 of the ICCPR and the ICESCR give no right to group[s] or
person[s] to conduct human rights violations, there is evidence on the relevance to
conduct a study on the most flagrant violations of human rights by terrorists as
regards non-derogable rights.
a/ The right to life
The terrorists primary weapon is the arbitrary killing of people, like during the
attacks on the World Trade Center on 11 September 200161, or the all too common
suicide bombings in various parts of the world. The 1948 Universal Declaration of
Human Rights (UDHR) proclaims, [e]veryone has the right to life, liberty and
security of person62. The right to life, which the Committee has recalled, should not
be interpreted narrowly63, is the supreme right from which no derogation is
possible64, and it is basic to all human rights65. Subsequently to the adoption of the
UDHR, a large array of conventions were [] adopted under the auspices of the
United Nations [] to guarantee different facets of the right to life66 or to guarantee
the right to life to certain groups (racial and ethnic minorities, children, women).
Art. 6 of the ICCPR also lays down the non-derogable right to life: Every human
being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.
Art. 6 para. 1 ICCPR encourages States to adopt appropriate legislation to
prevent the commission of criminal acts susceptible of endangering the right to life.
Art. 3 of the Human Rights Committees (HRC) General Comment N 06 uses a
more determined language: States parties should take measures not only to prevent
and punish deprivation of life by criminal acts, but also to prevent arbitrary killing
by their own security forces. States therefore have a positive obligation to confront
the issue of terrorism in order to prevent and punish attacks that kill people under
their territorial jurisdiction. Terrorists also resort to hostage taking, which can
arguably amount to a violation of the right to life. As a matter of fact, para.4 of
General Comment No. 06 provides: States parties should also take specific and
effective measures to prevent the disappearance of individuals, something which
unfortunately has become all too frequent and leads too often to arbitrary
deprivation of life. Furthermore, States should establish effective facilities and
61
Those attacks killed almost 3000 people. See http://www.9-11heroes.us/victims-world-trade-center.php

Article 3, Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/
63
U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para.1.
64
para.1.
65
Art.6.
66
Y. MURTHY, Human Rights Handbook, New Delhi, Lexis Nexis, 2007, p. 28.
62
RJOI 2013 n 16
12
procedures to investigate thoroughly cases of missing and disappeared persons in

circumstances which may involve a violation of the right to life67.
b/ Torture and other cruel, inhuman or degrading treatment or punishment
The international conventions on torture place obligations upon States to
refrain from resorting to torture and to impede agents under their authority to do so.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment68 (CAT) defines torture as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him for
an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions69.
Unlike the Convention Against Torture, which requires that pain be inflicted
with the consent or acquiescence of a public official or other person acting in an
official capacity70, the Rome Statute of the International Criminal Courts definition
has no reference to official involvement71. For the purpose of this discussion, we shall
use the definition of the ICC Statute since it attributes personal, rather than state
responsibility.
Torture can, according to the ICC, be either physical or mental72. The nature
of terrorist acts is multifaceted, ranging from bombings, cyber-terrorism, hostage
taking, plane crashes and so on. Hostage-taking by terrorists can amount to torture
under certain conditions. Indeed Pierre Legrand, Daniel Larribe, Thierry Dol and
Marc Furrer, four French citizens are being held hostage since September 2010 in
Nigeria by Al-Qaida in the Islamic Maghreb (AQIM) 73 , with constant fear of
assassination (which is legitimate if we remember previous hostage taking by
AQIM)74. Arguably, this can be read in the light of the death row phenomenon,
67
Emphasis added.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted
10 December 1984, entered into force 26 June 1987), UNGA Res 39/46.
69
Id. Art.1 para.1
70
Ibid.
71
Art.7 para.2 (e) provides: Torture means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the accused; except that torture
shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
72
Ibid.
73
Al-Qaida in the Islamic Maghreb is a terrorist organization independent from the mother Al-Qaida.
Nonetheless, it pledged allegiance to Osama Bin Laden. Its area of influence spreads from Mauritania to the
Chad, encompassing by Mali, Algeria, Niger and Nigeria.
74
See this article about Michel Germaneaus assassination by AQIM: http://info.france2.fr/france/otageexecuteaqmi-assure-avoir-negocie-avec-paris-64296014.html
68
13
RJOI 2013 n 16
which is caused by prolonged detention on death row thereby causing great mental
distress, raising a number of issues relating to Art. 775 of the ICCPR76. While at first
the HRC did not consider the death row phenomenon as a breach of Art. 777, it
eventually shifted position recognizing the possibility of regarding it as torture: It
now seems that the HRC accepts that detention in a death cell after the issue of a
warrant for execution does amount to a breach of article 7 if it is deemed
unreasonably long. [] The imminence of anticipated execution, and the consequent
increase in anxiety, distinguishes such instances from ordinary cases of the death
row phenomenon78.
c/ Freedom of thought, conscience and religion
This freedom is non-derogable and protected by Art.18 of the ICCPR, which
provides:
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance, practice
and teaching.
2. No one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions.
Terrorism, especially that practiced by extremist religious groups such as Aum
Shinrikyo 79 or more recently Islamist groups such as Al-Qaida jeopardize the
freedom of thought, conscience and religion. Extremist religious groups center their
rhetoric on religious differences and target people that do not share their religious
views, thus violating Art.18 of the ICCPR.
75
Art. 7 ICCPR provides: No one shall be subjected to torture or cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.
76
Y. MURTHY, Human Rights Handbook, New Delhi, Lexis Nexis, 2007, p. 28.
77
Barrett and Sutcliffe v Jamaica UN Doc CCPR/C/44/D/271/1988 (1992).
78
Pennant v Jamaica UN Doc CCPR/C/64/D/647/1995 (1998).
79
Aum Shinrikyo, also known as A.I.C. is a Japanese extremist religious group responsible for the March
1995 attack in several Tokyo subway trains, killing 12 people and causing up to 6,000 to seek medical
treatment. United States Department of State, Country Reports on Terrorism 2009, p. 244-245.
RJOI 2013 n 16
14
2/ Violation of other non-derogable rights

a/ Hostage taking, abductions or unacknowledged detention
Two examples have been given previously showing how the terrorists hostage
taking could violate the inherent human right to life and could also be considered as a
violation of the prohibition on torture and other cruel, inhuman or degrading
treatment or punishment. General Comment 29 on the non-derogable rights
nevertheless asserted the non-derogable nature of [t]he prohibitions against taking
hostages, abductions or unacknowledged detention []. The absolute nature of these
prohibitions, even in times of emergency, is justified by their status as norms of
general international law80.
The phrase [t]heir status as norms of general international law refers to the
numerous sectoral treaties on terrorism prohibiting hostage taking. Hostage taking
can be linked with other ICCPR provisions than Art. 6 and Art. 7. For example, it is
contrary to the right protected by Art.9 para.1 of the ICCPR, which provides:
Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.
b/ Propaganda for war, advocacy of national, racial or religious hatred
Osama Bin Ladens Declaration of War Against the Americans Occupying
the Land of the Two Holy Places is a flagrant example of propaganda for war and of
advocacy of national hatred: [T]here is no more important duty than pushing the
American enemy out of the holy land. [] Utmost effort should be made to prepare
and instigate the Ummah against the enemy 81 , the American/Israeli alliance
occupying the country of the two Holy Places. [] Therefore efforts should be
concentrated on destroying, fighting, and killing the enemy until, by the Grace of
Allah, it is completely defeated82.
This 10,000 word-long declaration undoubtedly violates Art. 20 of the
ICCPR83. Bin Ladens declaration violates at once all the provisions of this article,
whether it be propaganda for war (Declaration of War Against the Americans[]),
advocacy of national hatred (the American enemy) or advocacy of religious hatred
(the word Zionist appears seventeen times in the declaration). This declaration also
violates Art. 18 of the ICCPR, notably with sentences like If I survive, Allah
80
U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 13(b).
81
The Ummah is the community of muslims.
82
Emphasis added.
83
Art. 20 provides:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law.
15
RJOI 2013 n 16
willing, I will expel the Jews and the Christians out of the Arab Peninsula. Finally, a
violation of Art.19 ICCPR can be invoked, for Bin Laden did not abide by the duties
and responsibilities inherent to the freedom of opinion84.
II.- Legal definitions of terrorism

Legal definitions of terrorism differ from theoretical definitions in the sense
that they are confronted with reality. While theoretical definitions are driven by the
scholars own ideologies, the States political interests drive national definitions (A).
This multiplicity of national interests is even more consequential on the international
attempts at defining terrorism (B).
A.- National definitions driven by political interests
The different definitions adopted by States reflect their approach to terrorism,
and the political issues at stake. Some States have multiple definitions of terrorism,
depending on which administration is dealing with the phenomenon. The United
States is a very good example of this multiplicity of definitions.
1/ Guaranteeing security
The United States is a federal State, and as such each of the fifty American
States can adopt its own legislation on terrorism, which renders a homogeneous
interpretation of the notion difficult. However, even at the federal level various
administrations have adopted their own definition, depending mainly on the role and
objectives of said administration. Here, politics play their biggest role.
a/ The United States judiciarys definition
The United States Code (USC) is the codification by subject matter of the
general and permanent laws. It is divided by subjects into 50 titles, out of which only
23 have been enacted into statutory (positive) law. The text titles enacted into
positive law are legal evidence of the law, whereas titles that have not been enacted
84
Art. 19 provides:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
RJOI 2013 n 16
16
into positive law are only prima facie evidence of the law85. Title 18 (relative to
crimes and criminal procedure), whence the following definition of international is
extracted has been enacted into statutory law86 :
(1) the term international terrorism means activities that(A) involve violent acts or acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination,
or kidnapping; []
This definition is almost the same as the 1978 Foreign Intelligence
Surveillance Acts, which made terrorism a criminal offence. There is some
confusion about the nature of terrorism, which is at once a criminal offense and an act
of war87. This shift is attributable to G.W. Bushs administration in response to the
events of 9/11 to fit the context of the War on Terror. When international terrorism
was a crime, the United States applied legal means as the primary tool to fight it88.
Since the shift from crime to act of war however, the United States has moved
away from reactive counter-terrorism law enforcement methods towards more
proactive techniques to fight international terrorism89.
The revised version of the 1978 Foreign Intelligence Surveillance Act is a good
example of deductive definition, with subsection (1) containing the substantive
element, (2) the intent element, and (3) the jurisdictional element90. Yet, the original
substantive element was quite broad, leaving too much room to interpretation. This
has been corrected by subsequent additions to Chapter 113B, with 2332 entitled
Criminal penalties, providing a list of the offenses constituting terrorism.
85
http://www.gpo.gov/help/about_united_states_code.htm
Title 18, Part I, Chapter 113B, 2331.
87
The aforementioned legislation provides :
(4) the term act of war means any act occurring in the course of(a) declared war;
(b) armed conflict, whether or not war has been declared, between two or more nations; or
(c) armed conflict between military forces of any origin
88
T. RAIMO, Winning at the Expense of Law : The Ramifications of Expanding Counter-Terrorism Law
Enforcement Jurisdiction Overseas, AM.U.INTL.L.REV., 1999 p. 74, qtd. in, S. TIEFENBRUN S., A
Semiotic Approach to a Legal Definition of Terrorism, ILSA J., Intl & Comp. L., 2002, vol.9, p. 357.
89
Ibid.
90
G. LEVITT, Is Terrorism Worth Defining? , ONULR 1986, vol. 13, p. 104.
86
17
RJOI 2013 n 16
The definition of international terrorism provided by Title 18, Chapter 113B

USC is the one applied by federal courts. However the Federal Bureau of
Investigation (FBI) 91, which depends on the Department of Justice, uses a different
definition of terrorism, that of Title 22 USC utilized by the agencies and departments
related to the National Counterterrorism Center (NCTC).
b/ The United States administrations definitions
The United States administrations and agencies define terrorism differently
according to the mission they are assigned. The Department of Defenses fight
against terrorism on foreign grounds is based on a much broader definition of
terrorism (ii) than that of the agencies pertaining to the National Counterterrorism
Center (i) because of the exigencies of its missions.
(i) The National Counterterrorism Center
The National Counterterrorism Center (NCTC) is the United States
governmental organization responsible for the countrys national and international
counterterrorism efforts92. Created by a Presidential Executive Order in 2004 upon a
recommendation of The 9/11 Commission Report93, the NCTC is a gathering of
different agencies and organizations, amongst which are the Central Intelligence
Agency (CIA), the FBI, the Department of Defense (DOD) and the Department of
State (DOS)94. The mission of the NCTC is to [l]ead [the] nations effort to combat
terrorism at home and abroad by analyzing the threat, sharing that information with
[its] partners, and integrating all instruments of national power to ensure unity of
effort95.
Every year, the NCTC issues a Report on Terrorism to provide the Department
of State with statistical information on terrorism. Both the CIA and the FBI, amongst
the two most active agencies in the fight against terrorism use the NCTCs definition
of terrorism, i.e. that of Title 22 2656f(d)(2) USC96. The definitions Title 22 gives
of international terrorism and terrorism are as subject to interpretation as they
are short:
91
The mission of the FBI is to protect and defend the United States against terrorist and foreign
intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership
and criminal justice services to federal, state, municipal, and international agencies and partners; and to
perform these responsibilities in a manner that is responsive to the needs of the public and is faithful to the
Constitution of the United States: http://www.fbi.gov/about-us/quick-facts.
92
For more information on the NCTC, see http://www.nctc.gov/about_us/about_nctc.html.
93
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report,
Executive Summary, available at http://www.c-span.org/pdf/911finalreportexecsum.pdf
94
For a complete list of the partner agencies, see http://www.nctc.gov/about_us/key_partners.html.
95
http://www.nctc.gov/about_us/about_nctc.html
96
It is noteworthy that Title 22 of the USC has not been enacted into positive law and as such, only is prima
facie evidence of the law.
RJOI 2013 n 16
18
(d) Definitions
As used in this section(1) the term international terrorism means terrorism involving citizens or
the territory of more than 1 country;
(2) the term terrorism means premeditated, politically motivated violence
perpetrated against noncombatant targets by subnational groups or clandestine
agents; []
This overly broad definition of terrorism raises three issues as regards human
rights. First, the agencies relating to the aforementioned definition of terrorism are
left with the discretionary power to qualify anyone as a terrorist, depending on the
agencys needs on a case-by-case scenario, thus violating the principle of legality,
which can lead to human rights violations such as, inter alia, the prohibition of
discrimination based on race.
Second, the omission of the intent element can result in non-terrorist
organizations being labeled as terrorist97. According to the definition given by Title
22, if Greenpeace was to try and force a German tanker to stop off the coasts of
France and that accidentally said tanker would collide with the Greenpeace ship98,
breaching the tanker and resulting in an oil spill, Greenpeace would be considered an
international terrorist group. The violence would be politically motivated (raise
public awareness on the harmful effects of oil), perpetrated against noncombatant
targets (the tanker, a commerce ship, sometimes state-owned) by a subnational
group, in this case members of Greenpeace, a non-governmental organization
(NGO).
Last but not least, the most important difference between the definition of
terrorism of Title 18 USC and that of Title 22 USC is the shift from civilian
population to noncombatant targets. Considering terrorism as an act of war
rather than a mere crime is one of the most prominent example of the G.W. Bush
administrations toughened policy, which will have numerous consequences on
human rights, and especially International Humanitarian Law (IHL)99.
97
One might argue that premeditated equates with intended to. To the author of this article,
Premeditated means planned in advance, while intend means to have a plan, result or purpose in
your mind when you do something. While premeditated refers to the means, intend refers to the end.
98
Emphasis added.
99
For more information on the impacts of US counterterrorism on international human rights law, see T.
MERTUS, T. SAJJAD, Human Rights and Human Insecurity: The Contributions of US Counterterrorism ,
JHR 2008, vol. 7, p. 1-24 ; J. FITZPATRICK, Jurisdiction of Military Commissions and the ambiguous war
on terrorism, AJIL, 2002, vol. 96, p. 345-354 ; J. FITZPATRICK, Speaking Law to power: The war Against
Terrorism and Human Rights , EJIL, 2003, vol. 14, p. 241-264 ; D.A. MUNDIS, The Use of Military
Commissions to Prosecute Individuals Accused of Terrorist Acts , AJIL, 2002, vol. 96, p. 320-328.
19
RJOI 2013 n 16
(ii) The Department of Defense

The Department of Defenses mission is to provide the military [with the]
forces needed to deter war and to protect the security of the United States100. The
Secretary of Defense is the principal defense policy advisor of the President, who is
the Commander in Chief of the Army and Navy of the United States101. The DOD
has adopted its own definition of terrorism. Wikileaks has leaked the Department of
Defense Joint Publication 3-07.2 entitled Antiterrorism and dated of 14 April 2006,
which provides doctrine on how to organize, plan, train for, and conduct joint
antiterrorism operations102. In this document that was kept secret and that was for
official use only, a terrorist is [a]n individual who commits an act or acts of
violence or threatens violence in pursuit of political, religious, or ideological
objectives 103 . This definition is by far the shortest and broadest amongst the
definitions used in the United States and studied above. It is however not limitative,
since the preface of this joint publication reads: It is not the intent of this publication
to restrict the authority of the JFC [Joint Force Commander], from organizing the
force and executing the mission in a manner the JFC deems most appropriate to
ensure unity of effort in the accomplishment of the overall objective104. As such,
there is virtually no limit to the DODs interpretation of this already broad definition
of a terrorist.
The three issues raised by the NCTCs definition of terrorism as regards
human rights are even more vivid with the DODs105. It demonstrates that the role of
politics and lobbies is unquestionable.
2/ Preserving national unity
Indias definitions of terrorism are aimed at preserving national unity. India is a
continent in itself, with an extraordinary variety of landscapes, peoples, religions and
ethnic groups. This diversity makes not one India, but many Indias. As a
consequence to this diversity, the country is filled with movements demanding
independence or autonomy. Those often are radical movements related to political
parties using force and terrorism to tip the scales in their favor in times of elections.
The first legal definition of terrorism in India can be found in the 1987 Terrorist and
Disruptive Activities (Prevention) Act (TADA)106, of which the main and immediate
100
http://www.defense.gov/about/
Art.2 section 2 para.1 of the Constitution of the United States.
102
Joint Publication 3-07.2, Antiterrorism, United States Department of Defense 2006, p. i.
103
Id. p. 224
104
Id. p. i.
105
Ibid.
106
Part II, Section 3, sub-section 1 of this act provides: Whoever with the intent to overawe the Government
as by law established or to strike terror in the people or any section of the people or to alienate any section
of the people or to adversely affect the harmony amongst different sections of the people does any act or
thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or
other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether
101
RJOI 2013 n 16
20
purpose was to tackle the Khalistan Movement. This act, despite the fact that it
contained a more detailed definition than the legislations studied above, has served as
ground for extensive violations of human rights107, which resulted in its repel in 1995.
TADA was replaced by the Prevention of Terrorism Act (POTA) in 2002. POTAs
definition of terrorism is very similar to that of TADA. It contains a few additional
provisions along with a reference to the Unlawful Activities (Prevention) Act, 1967.
POTAs definition of terrorism is worth delving into because it is representative of
Indias stance on the issue. Chapter 2, Section 3, sub-section (1) of POTA provides:
(1) Whoever,(a) with intent to threaten the unity, integrity, security or sovereignty of India
or to strike terror in the people or any section of the people does any act or thing by
using bombs, dynamite or other explosive substances or inflammable substances or
firearms or other lethal weapons or poisons or noxious gases or other chemicals or
by any other substances (whether biological or otherwise) of a hazardous nature or
by any other means whatsoever, in such a manner as to cause, or likely to cause,
death of, or injuries to any person or persons or loss of, or damage to, or destruction
of, property or disruption of any supplies or services essential to the life of the
community or causes damage or destruction of any property or equipment used or
intended to be used for the defense of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies, or
detains any person and threatens to kill or injure such person in order to compel the
Government or any other person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful under
the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an
act aiding or promoting in any manner the objects of such association and in either
case is in possession of any unlicensed firearms, ammunition, explosive or other
instrument or substance capable of causing mass destruction and commits any act
resulting in loss of human life or grievous injury to any person or causes significant
damage to any property, commits a terrorist act.
Explanation. -For the purposes of this sub-section, "a terrorist act" shall
include the act of raising funds intended for the purpose of terrorism.
Para. (a) of the POTA definition is almost identical with TADAs definition of
terrorism. The reference to the threat to the unity, integrity, security or sovereignty
of India reflects Indias long struggle against separatist groups. As a matter of fact,
biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death
of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of
any supplies or services essential to the life of the community, or detains any person and threatens to kill or
injure such person in order to compel the Government or any other person to do or abstain from doing any
act, commits a terrorist act.
107
For a thorough study of POTAs impact on human rights protection, see P. VERMA, The Terror of POTA
and Other Security Legislations in India, New Delhi, Human Rights Law Network, 2004, 629 p.
21
RJOI 2013 n 16
Indias great diversity in terms of ethnic groups, cultures, languages, religions,

geography, has led a few times to violent separatist struggles. TADAs mention of
any supplies or services essential to the life of the community has been modified in
POTA to any property or equipment used or intended to be used for the defense of
India or in connection with any other purposes of the Government of India, any State
Government or any of their agencies. This modification is more precise, and
contains an explicit reference to the military. POTA clearly targets violent acts
against military forces, in the same vein as Title 22 USCs shift from civilian
population to noncombatant targets with similar implications as regards
international humanitarian law.
The main difference between TADA and POTA however, is the latters
addition of the reference to the 1967 Unlawful Activities (Prevention) Act (UAPA).
This very broad act gives extraordinary powers to the Central Government to
virtually suppress any kind of dissent. Repelled in 2004 because it led to extensive
human rights abuse, POTA was replaced by an amended version of the 1967 UAPA.
3/ Suppressing dissent
The legal definition of terrorism can also be elaborated so as to silence
opposition, as it does in China (a) and Syria (b).
a/ China
China, with its 1.3 billion inhabitants is the fastest growing economy in the
world. This economic growth has been made possible thanks to the economic
liberalization instituted by the Communist party of the past years, to such extent that
some dont consider China a Communist country anymore. This economic
liberalization has not been followed by a development of freedoms and human rights,
as is usually the pattern. Indeed, many examples show that China has not opened up
to the development of human rights. Liu Xia Bos empty chair at the Nobel peace
prize ceremony in 2010 is one of the most striking images of Chinas authoritative
regime.
China has resorted to its anti-terrorism legislation to suppress dissent through
the imprisonment and killing of political opponents in the Xing Xiang province, in
Tibet and many other places. While Art. 120 of the Criminal Law of the Peoples
Republic of China criminalizes terrorism108, it does not give an actual definition of
108
This article provides: Whoever forms, leads or actively participates in a terrorist organization shall be
sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; other
participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention
or public surveillance.
Whoever, in addition to the crime mentioned in the preceding paragraph, commits other crimes of homicide,
explosion or kidnap shall be punished in accordance with the provisions on combined punishment for
several crimes.
RJOI 2013 n 16
22
terrorism. The lack of definition of terrorism thus infers that authorities are given the
discretionary power of charging anyone with a terrorist offence. As Amnesty
International puts it, there is concern that the provisions of Article 120 make it a
criminal offence to be a member, leader or organiser of a terrorist organization
even if the individual does not commit any other illegal act. The term terrorist
organisation is not defined in the law and could be interpreted as referring to
peaceful political opposition or religious groups109.
Amnesty Internationals fear that peaceful political opposition be considered
terrorist was legitimate: the people who were arrested because they were peacefully
demonstrating during the 2008 Olympics were charged under Art. 120 of the Chinese
Criminal Code.
b/ Syria
The Arab Convention for the Suppression of Terrorism served as the basis for
the Syrian anti-terrorism legislation. The Arab Convention for the Suppression of
Terrorism defines terrorism as [a]ny act or threat of violence, whatever its motives
or purposes, that occurs in the advancement of an individual or collective criminal
agenda and seeking to sow panic among people, causing fear by harming them, or
placing their lives, liberty or security in danger, or seeking to cause damage to the
environment or to public or private installations or property or to occupying or
seizing them, or seeking to jeopardize national resources110.
This definition of terrorism is too far-reaching for three reasons. First of all,
violence is the only substantive element of the definition, which is just too vague to
be the only element of reference111. Secondly, violence can either be actual or
hypothetical, in the sense that even threat can serve as ground for convicting a
terrorist ([a]ny act or threat []). Finally, this definition clearly states that motive
is irrelevant (whatever its motives or purposes), which can result in any crime
being considered a terrorist attack.
State parties to the Arab Convention for the Suppression of Terrorism (ACST)
have been advocating on the international stage for a definition of terrorism that
would differentiate terrorism and fights for liberation. This has resulted in a radical
opposition between mostly, the western states on the one side and the Arabian
states on the other side, thus blocking the adoption of a comprehensive convention
on terrorism. Art.2 para.(a) of the ACST advocates for the acknowledgement of
109
Amnesty International, Peoples Republic of China: Chinas anti-terrorism legislation and repression in
the Xinjiang Uighur , available at http://www.amnesty.org/en/library/asset/ASA17/010/2002/en/feb1b2bbd873-11dd-9df8-936c90684588/asa170102002en.html.
110
Arab Convention for the Suppression of Terrorism, adopted by the Council of Arab Ministers of the
Interior and the Council of Arab Ministers of Justice. Cairo, April 1998. Emphasis added.
111
The act referred to in the international conventions mentioned in Art.1 para.3 are also regarded as terrorist
offences, provided those conventions have been ratified by the States parties to the Arab Convention for the
Suppression of Terrorism.
23
RJOI 2013 n 16
fights for national liberation. It provides: All cases of struggle by whatever means,
including armed struggle, against foreign occupation and aggression for liberation
and self-determination, in accordance with the principles of international law, shall
not be regarded as an offence. This provision shall not apply to any act prejudicing
the territorial integrity of any Arab State.
The last sentence of this provision however, makes fights for national
liberation unlawful if they happen on a state party to the ACST. This sets a double
standard, allowing for violence as long as it is directed towards a non-Arabian State.
Bin Ladens Declaration of War Against the Americans Occupying the Land of the
Two Holy Places112 is lawful, whereas the Syrian populations struggle to free itself
from the authoritarian regime of Bachar El Assad is not.
4/ Protecting human rights
The European Unions definition of terrorism is particularly interesting
because it is the farthest-reaching regional effort towards the protection of human
rights while combating terrorism. The Council of the European Union has adopted
the Council Framework Decision on combating terrorism113 (CFDCT) to replace the
twenty-four year old European Convention on the Suppression of Terrorism 114 .
Framework decisions adopted by the Council of the European Union are binding
upon Member States and aim at harmonizing their laws and regulations115. The
CFDCT provid[es] a uniform legal framework for prosecuting terrorist acts,[]
institutes a common definition of terrorist offences, as well as rules of competence
and of legal cooperation between Member States for the prosecution of persons
having committed terrorist acts116.
Art.1 para.1 of the CFDCT is entitled Terrorist offences and fundamental
rights and principles117. This article being the first in the Framework Decision
112
O. BIN LADEN, Declaration of War Against the Americans Occupying the Land of the Two Holy Places
, available at http://www.terrorismfiles.org/individuals/declaration_of_jihad1.html , visited on Feb. 25,
2011.
113
(2002/475/JHA) signed at Luxembourg on 13 June 2002.
114
European Convention on the Suppression of Terrorism, signed at Strasbourg on 27 January 1977,
available at http://conventions.coe.int/
115
Art. 34 (2)(b) TEU provides:
The Council shall take measures and promote cooperation, using the appropriate form and procedures as
set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously
on the initiative of any Member State or of the Commission, the Council may: []
(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member
States. Framework decisions shall be binding upon the Member States as to the result to be achieved but
shall leave to the national authorities the choice of form and methods. They shall not entail direct effect
[].
116
E. DUMITRIU, The E.U.s Definition of Terrorism: The Council Framework Decision on Combating
Terrorism, GLJ, 2004, vol. 5, n 5, p. 590.
117
Art. 1 para.1 provides:
RJOI 2013 n 16
24
represents the acknowledgement of the importance of linking terrorism and human

rights. Art. 1 para.1 lists the acts that shall be deemed to be terrorist offences
(substantial element).
For an act to be qualified as a terrorist offence under the Framework Decision,
three conditions must be met: (1), the act at stake has to be incriminated under
national law; (2), the attack has to be directed against a population, a country or an
international organization (jurisdictional element); (3), the offense must have been
committed with the intent of violating either (1) or (2) or both (intent element)118.
Art. 1 para. 2 is quite uncommon in the sense that it is one of the rare instances
when a definition of terrorism contains the equivalent of a non-derogability clause as
regards the protection of human rights. It reads: this Framework Decision shall not
have the effect of altering the obligation to respect fundamental rights and
fundamental legal principles as enshrined in Article 6 of the Treaty on European
Union. Art.6 section 1 of the Treaty on European Union provides that the European
Union Fundamental Rights Charter of 7 December 2000 has the same value as
treaties. As such, the Fundamental Rights Charter is a higher norm than the CFDCT.
As of Art.6 section 3, it stipulates that the fundamental rights, as guaranteed by the
European Convention on Human Rights are part of the Unions general principles.
This sample of definitions of terrorism is representative of the vast array of
what exists at national and regional level. Notwithstanding the fact that States define
Each Member State shall take the necessary measures to ensure that the intentional acts referred to below
in points (a) to (i), as defined as offences under national law, which, given their nature or context, may
seriously damage a country or an international organisation where committed with the aim of:
- seriously intimidating a population, or
- unduly compelling a Government or international organisation to perform or abstain from performing any
act, or
- seriously destabilising or destroying the fundamental political, constitutional, economic or social
structures of a country or an international organisation,
shall be deemed to be terrorist offences:
(a) attacks upon a persons life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure
facility, including an information system, a fixed platform located on the continental shelf, a public place or
private property likely to endanger human life or result in major economic loss;
(e) seizure of aircraft, ships or other means of public or goods transport;
(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear,
biological or chemical weapons, as well as research into, and development of, biological and chemical
weapons;
(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger
human life;
(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the
effect of which is to endanger human life;
(i) threatening to commit any of the acts listed in (a) to (h).
118
E. DUMITRIU, The E.U.s Definition of Terrorism: The Council Framework Decision on Combating
Terrorism, GLJ, 2004, vol. 5, n 5, p. 592.
25
RJOI 2013 n 16
terrorism so as to defend their own interests, it is interesting to see how they try to
define it in a way that it encompasses as many offenses as possible, either by having
a very short and imprecise definition (like Chinas) or by enabling any kind of
offence to fall within the range of terrorism (the Arab Convention for the Suppression
of Terrorism), giving way to human rights abuse.
B.- International regulations of terrorism stalled because of diverging national
interests
International instances have been dealing with the issue of terrorism for
decades. As early as 1937, the League of Nations adopted the Convention for the
Prevention and Punishment of Terrorism119 as a response to the assassination of King
Alexander of Yugoslavia and of the French foreign minister Louis Barthou by a
Croatian assassin in France on October 9, 1934120. However, this convention never
entered into force because States did not agree on a definition of terrorism. The
international communitys first attempt at defining terrorism thus failed because of
diverging national interests. As a consequence, the definition of terrorism remained a
prerogative of the States in order to avoid the politicization of the debate on the
international stage. This negative consensus resulted in the adoption of several
sectoral treaties determining what acts constituted terrorism.
In the meantime, the United Nations continued to work on the issue of
terrorism121. The General Assemblys Sixth (legal) Committee has long been working
on a Comprehensive Convention on Terrorism that would finally define terrorism (1).
As for the Security Council, its position on the issue has evolved positively, shifting
from a hard-line policy to a more human-rights friendly approach (2).
1/ The General Assemblys Sixth Committees unwavering will
In the 1990s, the United Nations (UN) adopted a number of documents
intended at setting international standards while dealing with international terrorism.
In the 1994 Declaration on Measures to Eliminate International Terrorism annexed to
Resolution 49/60122, the United Nations encouraged Member States to urgently
review the scope of the existing international legal provisions on the prevention,
repression and elimination of terrorism with the aim of ensuring that there is a
119
LN Doc. C.546(I).M.383(I)/1937.V
Encyclopedia Of World History: Crisis and Achievement 1900 to 1950, vol.V, Golson Books, 2008, p.
xxv.
121
For a detailed history of the United Nations work on terrorism until 1999, see UNCHR (SubCommission), Report by Special Rapporteur Kalliopi K. KOUFA on Terrorism and Human Rights , UN
Doc E/CN.4/Sub.2/1999/ no27 (1999), para. 6 to 15. For the history of international effort to deal with
terrorism between 1999 and 2001, see UNCHR (Sub-Commission), Report by Special Rapporteur Kalliopi
K. KOUFA on Terrorism and Human Rights , UN Doc E/CN.4/Sub.2/2001/31 (2001).
122
UN DOC A/RES/49/60 adopted at the 84th plenary meeting of the UNGA on 9 December 1994.
120
RJOI 2013 n 16
26
comprehensive legal framework covering all aspects of the matter123.

This declaration was followed by General Assembly resolution 51/210 of 17
December 1996124, which created an Ad Hoc Committee to supervise the negotiations
towards the adoption of a Comprehensive125 Convention on International Terrorism.
India has played a leading role in the elaboration of the Draft Comprehensive
Convention on International Terrorism by providing texts that served as a basis for
discussion126. These negotiations take place under the auspices of the Sixth (legal)
Committee.
a/ Sources of legal argument regarding the Comprehensive Convention on
terrorism
At the close of its eighth session in 2004, the Ad Hoc Committee on terrorism
observed that negotiations on the draft comprehensive convention were almost
complete [and urged] delegates to show flexibility and compromise to expedite the
resolution of outstanding issues127.
(i) Demands for a clear legal definition
The outstanding issues that need to be solved are double and are worth
mentioning. First, there is the question of the need to have a clear legal definition of
terrorism. This issue has been contentious ever since the creation of the Ad Hoc
Committee, as some delegations advocated that the existing sectoral conventions
were sufficient to combat terrorism. Furthermore, those delegations have raised the
question of the relationship between the draft Comprehensive Convention and the
sectoral conventions, which might result in a legal overlap. While some States
considered that the last in time rule should be applied and, therefore, the
Comprehensive Convention would supersede previous conventions to the extent that
it would overlap in substance with those conventions, others argued that the
existing sectoral conventions would be viewed as lex specialis and would therefore
remain applicable in cases where the acts in question fell within their respective
purviews 128 . The Committee answered that the second option should prevail,
stressing the interrelation of the Comprehensive Convention and the existing (and
future) sectoral treaties.
123
Draft Convention on International Terrorism, available at http://cns.miis.edu/inventory/pdfs/intlterr.pdf.

UN DOC A/RES/51/210 adopted at the 88th plenary meeting of the UNGA on 17 December 1996.
125
Comprehensive means including all, or almost all, the items, details, facts, information, etc., that may
be concerned. Oxford Advanced Learners Dictionary, Oxford University Press, 7th ed., 2005, p. 311.
126
For more information, see P. GOODENOUGH, India Challenges Non-Aligned Countries to Condemn
Terrorism Unequivocally, available at http://cnsnews.com/news/article/india-challenges-non-alignedcountries-condemn-terrorism-unequivocally
127
Commentary on the Draft Comprehensive Convention on International Terrorism, available at
http://cns.miis.edu/inventory/pdfs/intlterr.pdf.
128
Ibid.
124
27
RJOI 2013 n 16
(ii) The activities of State armed forces in armed conflicts and in exercise of
their official duties
The question whether the activities of States armed forces should be exempted
from the scope of the convention or not was another source of discord. The activities
of State armed forces at stake are not only those during an armed conflict, but also
the activities in exercise of their official duties. IHL governs the activities of States
armed forces in armed conflict. As such, those activities should be excluded from the
scope of the Comprehensive Convention on Terrorism129. Making this distinction is a
great achievement for IHL in the sense that it maintains the lex specialis character of
this set of rules.
Human Rights law however is not really promoted by the Comprehensive
Convention on Terrorism. Indeed, as of 3 November 2010 the Working Group in
charge of drafting the Comprehensive Convention on International Terrorism has
adopted the view that the activities of State armed forces in exercise of their official
duties should not fall under the scope of the Comprehensive Convention inasmuch
as they are governed by other rules of international law130. State terrorism was thus
removed from the scope of the convention, while some delegations believed that the
definition of terrorism must necessarily cover acts of State-sponsored terrorism as
well as acts of State terrorism131. Other delegations however considered that while
State-sponsored terrorism could fall under the scope of the Convention, State
terrorism on the other hand fell under different legal norms, namely the UN
Charter132.
It should be pointed out that there are only two cautious mentions of
international human rights law in the Comprehensive Convention 133 , when this
convention would have been the perfect place to reassert the prevalence of human
rights.
(iii) The relationship between terrorism and anti-colonial and national
liberation movements
The debate surrounding the distinction between freedom fighters and
terrorists revolves around the phrase one mans terrorist is another mans
freedom fighter. This phrase typifies the subjective character of the definition of
terrorism. The attempts to entangle fights for national liberation and terrorism
129
UNGA, Measures to eliminate international terrorism (2010) UN Doc A/C.6/65/L.10 p. 17

Draft art. 3 para.2 provides:
The activities of armed forces during an armed conflict, as those terms are understood under international
humanitarian law, which are governed by that law, are not governed by this Convention.
130
Draft art.3 para.3, UNGA, Measures to eliminate international terrorism (2010) UN Doc A/C.6/65/L.10
p. 17.
131
Ibid.
132
Ibid.
133
Art. 9 and 14, UNGA, Measures to eliminate international terrorism (2010) UN Doc A/C.6/65/L.
RJOI 2013 n 16
28
originate mostly from the Arab world with the Arab Convention for the Suppression
of Terrorism (see supra). This standpoint however is older than that and can be traced
back to 1987 during the fifth Islamic summit meeting in Kuwait, which stated: The
conference reiterates its absolute faith in the need to distinguish the brutal and
unlawful terrorist activities perpetrated by individuals, by groups, or by states, from
the legitimate struggle of the oppressed and subjugated nations against foreign
occupation of any kind. This struggle is sanctioned by heavenly law, by human
values, and by international conventions134. One cannot read this statement without
linking it to the Palestinian struggle against the Israeli occupation. The Center for
Nonproliferation Studies has identified this issue (namely the relationship between
terrorism and anti-colonial and national liberation movements) as one of the factors
that dissuaded States from adopting a comprehensive approach on terrorism135.
Boaz Ganor extensively dealt with this issue in an article entitled Defining
Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter? in which he
argues that an objective definition of terrorism is not only possible; it is also
indispensable to any serious attempt to combat terrorism136. The solution to prevent
this confusion according to the author of this article would be to operate a clear
distinction between guerilla fighters and terrorists by paralleling IHLs distinction
between military and civilian targets in war. As a matter of fact, Ganor considers that
the goal of terrorists and guerilla fighters is the same (i.e. attain public137 goals);
whereas the means to achieve that goal is different: The guerilla fighters targets are
military ones, while the terrorist deliberately targets civilians 138 . As such, the
legitimacy of the fight for national liberation does not matter and any organization
that targets civilians would be labeled terrorist. Guerilla fighters on the other hand
(lets take for example the Syrian rebels, or the Lybian National Transitional
Committee) would be considered as legitimate combatants protected by the Geneva
Conventions provided they respect the laws and rules of war. Bringing terrorists to
abide by the rules of war and respect the sacrosanct principle of distinction would be
a great achievement for Counter-Terrorism 139 . Ganors standpoint is very
interesting, in the sense that it could answer some delegations need that the
comprehensive convention need to distinguish[terrorism] from the legitimate
struggle of peoples in the exercise of their right to self- determination from foreign
occupation or colonial domination140.
134
AL-ANBAA, The Fifth Islamic Summit Convention Decisions, Kuwait, qtd. in B. GANOR, Defining
Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter?, PPR, 2002, vol. 3, n 4. Emphasis
added.
135
The other two being (1) the legal definition of terrorism and (2) the activities of State armed forces in
armed conflicts and in exercise of their official duties.
136
B. GANOR, Defining Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter?, PPR, 2002,
vol. 3, n 4, p. 288.
137
Public meaning political, ideological or religious.
138
B. GANOR, Defining Terrorism: Is One Mans Terrorist Another Mans Freedom Fighter?, PPR, 2002,
vol. 3, n 4, p. 288.
139
Id. p. 289
140
UN Doc A/63/100.
29
RJOI 2013 n 16
In 2004 the Ad Hoc Committee in charge of drafting the Comprehensive

Convention considered that the negotiations were almost complete, but as of July
2011 this Convention has not been opened to ratification. The three major issues
slowing down this process (1- the need for a legal definition of terrorism; 2- the
status of the activities of State armed forces in armed conflict and in law enforcement
situation; and 3- the relationship between terrorism and anti-colonial and national
liberation movements) are highly political. The aim of the Comprehensive
Convention is thus to reach a common ground in order to withdraw the political
character of terrorism and set a common standard for fighting terrorism.
The adoption of the Comprehensive Convention on Terrorism has been stalled
for the aforementioned reasons. It is now interesting to study the definition of
terrorism that has reached consensus as of this day.
b/ The Comprehensive Convention on Terrorism, an imperfect instrument
This definition of terrorism contained in Art. 2 of the draft Comprehensive
Convention is similar to some of those studied in the preceding pages. It provides:
1. Any person commits an offence within the meaning of the present
Convention if that person, by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public
use, a State or government facility, a public transportation system, an infrastructure
facility or to the environment; or
(c) Damage to property, places, facilities or systems referred to in paragraph 1
(b) of the present article resulting or likely to result in major economic loss, when the
purpose of the conduct, by its nature or context, is to intimidate a population, or to
compel a Government or an international organization to do or to abstain from doing
any act.
2. Any person also commits an offence if that person makes a credible and
serious threat to commit an offence as set forth in paragraph 1 of the present article.
3. Any person also commits an offence if that person attempts to commit an
offence as set forth in paragraph 1 of the present article.
4. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1, 2
or 3 of the present article; or
(b) Organizes or directs others to commit an offence as set forth in paragraph
1, 2 or 3 of the present article; or
RJOI 2013 n 16
30
(c) Contributes to the commission of one or more offences as set forth in

paragraph 1, 2 or 3 of the present article by a group of persons acting with a
common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the commission of an offence as
set forth in paragraph 1 of the present article; or
(ii) Be made in the knowledge of the intention of the group to commit an
offence as set forth in paragraph 1 of the present article.
This definition is another example of a deductive definition. The intent element
is alluded to through the words intentionally, intentional and intention. This
clear statement that the terrorist activity has to be intended is a safeguard to prevent
the incrimination of people responsible for accidental actions similar to terrorism,
unlike the definition of terrorism of title 22 USC 141 . The public motive and
jurisdictional elements are also present, since the terrorist act has to be conducted
with the purpose to intimidate a population, or to compel a Government or an
international organization to do or to abstain from doing any act142. The substantive
element is rather broad but this comprehensive convention on terrorism has to be read
along with the thirteen international sectoral treaties on terrorism, as it is provided in
draft Art.4[2bis] 143 . This comprehensive definition of terrorism is indeed more
complete than most national definitions studied before. It is more restrictive and
gives less latitude to interpretation thus making it a better protection for human
rights.
Nevertheless even though the protection of human rights is in the spirit of this
comprehensive convention, it is not made a priority the way the European
Convention for the Suppression of Terrorism does. Apart from Articles 9 and 14
mentioning the protection of international human rights, the only other reference to
this set of rules is made in the preamble of the Comprehensive Convention with
Bearing in mind the necessity of respecting human rights and international
humanitarian law in the fight against terrorism 144 . Preambles are, shall it be
reminded, not legally binding according to the Vienna Convention on the Law of
Treaties 1969. Furthermore, the words Bearing in mind are very unassertive
compared to more emphatic phrases such as Convinced or Reaffirming. This
unassertiveness is to be attributed to the need to reach consensus on the text. Once
again, in order to reach consensus, the international community is inching towards a
141
See supra Part II-A-1.

Draft
Convention
on
International
Terrorism,
art.2
para.1
(c)
available
at
http://cns.miis.edu/inventory/pdfs/intlterr.pdf.
143
Art. 4 [2bis], UNGA, Measures to eliminate international terrorism (2010) UN Doc A/C.6/65/L., p. 7:
Where the present Convention and a treaty dealing with a specific category of terrorist offence would be
applicable in relation to the same act as between States that are parties to both the present Convention and
the said treaty, the provisions of the latter shall prevail.
144
Id. p. 5.
142
31
RJOI 2013 n 16
third-rate convention as regards human rights protection. Nevertheless, even if the

Comprehensive Convention did not ensure human rights enforcement mechanisms, it
did elaborate a human-rights friendly definition that is still in the making. The same
cannot be said of the Security Council.
2/ The positive evolution of the Security Councils position
In the aftermath of the 9/11 attacks, protection of human rights was obliterated
by the generalized fear for security (a). It would take the Security Council a few years
to change its position and start taking human rights into account while fighting
terrorism, all the while being more respectful with the full extent of its duties (b).
a/ When human rights sank into oblivion
The United Nations Security Council (SC) had been adopting resolutions on
terrorism for a long time, but none of those resolutions defined terrorism. The
absence of a definition of terrorism was not much of an issue prior to the attacks of
11 September 2001 since there was no international right or duty linked to the term
terrorism. SC Res 1373 however trigger[ed] obligations to criminalize financing
of terrorism; suppress terrorist groups; deny refugee statut to terrorists; prevent the
movement of terrorists; bring terrorists to justice; and [] establish terrorist acts as
serious domestic crimes145 (sic).
SC Res 1373 also called for the creation of a committee to monitor the
implementation of the aforementioned duties, the UN Counter Terrorism Committee
(CTC). The CTC consists in a body of experts who study and give recommendations
on reports sent by States outlining their fight against terrorism146. Along with the
constant review of the implementation of SC Res 1373, the Committee has been
promoting closer cooperation and coordination between all the instances dealing with
terrorism, be they international, regional or sub-regional.
The CTC decided not to define terrorism while supervising implementation of
the SC measures, in order not to interfere in the competence of other UN bodies by
defining it or by adjudicating on specific acts147. In other words, the CTC decided
not to define terrorism so as to have carte blanche to label whatever act it
subjectively considered illegal as terrorist. In addition, para.2 (e) of SC Res 1373
Decides [] that all States shall take appropriate measures to establish terrorist
acts as serious criminal offenses in domestic laws and regulations 148 without
enjoining those States to set a legislative or human rights framework. In this
145
B. SAUL, Defining Terrorism in International Law, Oxford Monographs in International Law, 2006, p.
48.
146
The Counter Terrorism Center regularly issues reports that are available at
http://www.un.org/en/terrorism/ctitf/reportsandpubs.shtml.
147
B. SAUL, Defining Terrorism in International Law, Oxford Monographs in International Law, 2006, p 49.
148
RJOI 2013 n 16
32
Resolution, the only allusion to human rights is made in para. 3 (f) when the Security
Council [c]alls upon all States to [] take appropriate measures in conformity with
the relevant provisions of national and international law, including international
standards of human rights, before granting refugee status, for the purpose of
ensuring that the asylum-seeker has not planned facilitated or participated in the
commission of terrorist acts.
There is a strong discrepancy in terms of assertiveness between the Security
Councils mere Call[ing] upon States to take measures in conformity with
international human rights before granting refugee status on the one side and its
Deci[sion] that all States shall criminalize terrorism on the other side. This
illustrates that the protection of human rights was clearly the least of the SCs
preoccupations at the aftermath of the attacks of September 11, 2001. The preamble
of SC Res 1373 Reaffirm[s] the need to combat by all means, in accordance with
the Charter of the United Nations, threats to international peace and security caused
by terrorist acts after (in order of appearance) Reaffirming the inherent right of
individual or collective self-defence as recognized by the Charter of the United
Nations as reiterated in resolution 1368 (2001). The implications deriving from this
are manifold.
Notwithstanding the fact that the recognition of the right to individual or
collective self-defense as a response to the 9/11 attacks is debatable149, this placed the
fight against terrorism in the armed conflict paradigm regulated by international
humanitarian law (IHL)150. This resolution reasserts the need to comply with the
obligations derived from the United Nations Charter after reaffirming that terrorism
had to be fought by all means. Compliance with the UN Charter is thus not of
paramount importance anymore.
This literal study shows that at the time of the adoption of SC Res 1373 the
main objective was to fight terrorism by all means, even by means of fighting it in
an armed conflict paradigm. Then comes the recommendation to respect the UN
Charter, which has already been partially derogated from by the Security Councils
recognition of the right to individual and collective self-defense against the attacks of
9/11. Finally, deriving from the already diminished UN Charter comes the protection
of human rights and fundamental freedoms, as prescribed by Art.1 para.3 of the
149
For an idea of the issues at stake, see F. MGRET, War? Legal Semantics and the Move to Violence ,
EJIL, 2002, vol.13, n 2, p. 361-399 ; G. SITARAMAN, Counterinsurgency, the War on Terror, and the Laws
of War , VLR, 2009, vol. 95, n 7, p. 1745-1839 ; ICRC, How is the Term Armed Conflict defined in
International Humanitarian Law? , 2008, available at http://www.icrc.org/eng/assets/files/other/opinionpaper-armed-conflict.pdf ; A. CONTE, B. GANOR, Legal and Policy Issues in Establishing an International
Framework for Human Rights Compliance When Countering Terrorism , IPICT, 2005, 44 p., available at
http://www.ict.org.il/Portals/0/Articles/20471-Ganor_Conte_Human_Rights.pdf
150
Numerous violations of IHL in the conduct of the War on Terror have been accounted for. See ICRC,
International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 30/IC/07/8.4, 68 p.
33
RJOI 2013 n 16
Charter outlining the purposes and principles of the United Nations151. After 9/11 the
main concern of the Security Council was to protect the security of States at the
expense of the protection of human rights, which was then considered a luxury no
one could afford.
b/ The Security Councils awakening
SC Res 1456 represents a turning point in the Security Councils fight against
terrorism. Adopted on January 20, 2003, it marks the moment when the SC realized
that the fight against terrorism could only be conducted in accordance with the UN
Charter of course, but also with the whole of international law. Para.6 of SC Res
1456 provides: States must ensure that any measure taken to combat terrorism
comply with all their obligations under international law, and should adopt such
measures in accordance with international law, in particular international human
rights, refugee, and humanitarian law []152.
This resolution sparked off the transformation of the Counter Terrorism
Committee and resulted in the establishment of the Counter Terrorism Executive
Directorate (CTED) with SC Res 1535153. The CTED was mandated to liaise with the
Office of the United Nations High Commissioner for Human Rights (OHCHR)154 so
as to assist the Committee in its efforts to move towards a more pro-active policy on
human rights. As the leading UN entity on human rights [and thanks to its] unique
mandate provided by the international community to promote and protect all human
rights for all people 155, the OHCHRs partnership with the CTC was a welcome
addition for the cause of human rights while countering terrorism.
Before the creation of the OHCHR the principal mechanism and international
forum concerned with the promotion and protection of human rights at the United
Nations level was the United Nations Commission on Human Rights (UNCHR),
established on 10 December 1946 at the first meeting of the United Nations Social
and Economic Council156. As early as 1996 (five years before 9/11 when terrorism
became the United Nations center of attention) the UNCHRs Sub-Commission on
151
Art. 1 para. 3 of the Charter of the United Nations provides that one of the purposes of the United Nations
is: [] To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion [].
152
UNSC Res 1456 (20 January 2003) UN Doc S/RES/1456.
153
UNSC Res 1535 (26 March 2004) UN Doc S/RES/1535.
154
Presided by Navanethem Pillay, the OHCHR was established by the UNGA on 20 December 1993 and is
under the authority of the UN Secretariat.
155
OHCHR, Report 2010, p. 5, available at
http://www2.ohchr.org/english/ohchrreport2010/web_version/media/pdf/0_Whole_Report.pdf
156
The United Nations Economic and Social Council (ECOSOC) is responsible for promoting higher
standards of living, full employment, and economic and social progress; identifying solutions to
international economic, social and health problems; facilitating international cultural and educational
cooperation; and encouraging universal respect for human rights and fundamental freedoms.
http://www.un.org/en/ecosoc/about/
RJOI 2013 n 16
34
Prevention of Discrimination and Protection of Minorities became concerned by the

impact of terrorism on human rights. In its resolution 1996/20 the Commission
entrusted Ms. Kalliopi K. Koufa with the task of preparing a working paper on the
question of terrorism and human rights 157 . In her preliminary report entitled
Terrorism and human rights Ms. Kalliopi wrote that finding an all-encompassing
and generally acceptable definition of terrorism is too ambitious an aim158, all the
while recognizing that any act of terrorism was unacceptable because it aimed at the
destruction of human rights, fundamental freedoms and democracy159.
In continuation of Kalliopis work, the OHCHR decided in resolution 2005/80
to appoint for three years a special rapporteur on the promotion and protection of
human rights and fundamental freedoms while countering terrorism to foster dialogue
between the UN Secretariat, the Commission on Human Rights (replaced in 2006 by
United Nations Human Rights Council which is under the authority of the General
Assembly) and the Security Council and its Counter-Terrorism Committee 160. This
special rapporteur, whose mandate was extended beyond the original three-years
period, therefore is the centerpiece of the United Nations effort to link human rights
and terrorism.
The study of the national legal definitions showed that States define terrorism
so as to fit their political agenda, without paying much attention to human rights
protection for some, in clear contradiction with said rights for the others. The
157
Rights, UN Doc E/CN.4/Sub.2/2001/31 (2001), para.1
158
159
160
OHCHR, Protection of human rights and fundamental freedoms while countering terrorism, UN Doc
E/CN.4/RES/2005/80. Sections (a) to (e) of art.14 outline the mandate of the special rapporteur. They
provide that the special rapporteurs role is:
(a) To make concrete recommendations on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, including, at the request of States, for the provision of advisory
services or technical assistance on such matters;
(b) To gather, request, receive and exchange information and communications from and with all relevant
sources, including Governments, the individuals concerned, their families, their representatives and their
organizations, including through country visits, with the consent of the State concerned, on alleged
violations of human rights and fundamental freedoms while countering terrorism, with special attention to
areas not covered by existing mandate holders;
(c) To identify, exchange and promote best practices on measures to counter terrorism that respect human
rights and fundamental freedoms;
(d) To work in close coordination with other special rapporteurs, special representatives, working groups
and independent experts of the Commission on Human Rights, the Sub-Commission on the Promotion and
Protection of Human Rights and other relevant United Nations bodies;
(e) To develop a regular dialogue and discuss possible areas of cooperation with all relevant actors,
including Governments, relevant United Nations bodies, specialized agencies and programmes, in particular
with the Counter-Terrorism Committee of the Security Council, the Office of the United Nations High
Commissioner for Human Rights, the Terrorism Prevention Branch of the United Nations Office on Drugs
and Crime, human rights mandate.
35
RJOI 2013 n 16
Security Council was partly responsible for that because it encouraged States to
toughen their anti-terrorism legislations and it gave them a free pass to do so by not
setting a framework respectful of international human rights and international
humanitarian law through its decision not to define terrorism.
Despite terrorism having slowly parted from the center of attention since the
economic crisis and the death of Osama Bin Laden, it is still a matter that cannot be
dealt with half-heartedly. If terrorism is such a concern, it is because it jeopardizes
the ideal that free human beings [enjoy] civil and political freedom and freedom
from fear []161. The legal uncertainty surrounding the notion of terrorism is such
that one cannot be sure that ones freedom from the fear of having ones rights
hindered via counterterrorism will be guaranteed. What is particularly true for States
like China and Syria also applies to international counterterrorism efforts. The
international community has to agree on a binding Comprehensive Convention on
Terrorism that stresses the importance of upholding human rights while countering
terrorism. It is essential because human-rights abusive counterterrorism operations
could be considered as State, State-sponsored or United Nations sponsored terrorism.
161
Preamble, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (ICCPR), emphasis added.
RJOI 2013 n 16
36

Defining Terrorism in International Law So As To Foster The Protection of Human Rights Adam-Duchemann RJOI-16-libre PDF

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Defining Terrorism in International Law So As To Foster The Protection of Human Rights Adam-Duchemann RJOI-16-libre PDF

Transféré par

Droits d'auteur :

Formats disponibles

Doctrine

DEFINING TERRORISM IN INTERNATIONAL

The search for a legal definition of terrorism in some ways resembles

G. LEVITT, Is Terrorism Worth Defining? , ONULR, 1986, vol. 13, p. 97.

I.- Theoretical definition of terrorism

by the police []; systems of imprisonment without trial [].28 Governments of

their impact on national criminal law.

part of the American Constitution, protects those fundamental rights.

fundamental freedoms. Since the violation of peremptory norms of international law

Those attacks killed almost 3000 people. See http://www.9-11heroes.us/victims-world-trade-center.php

procedures to investigate thoroughly cases of missing and disappeared persons in

2/ Violation of other non-derogable rights

II.- Legal definitions of terrorism

The definition of international terrorism provided by Title 18, Chapter 113B

(ii) The Department of Defense

Indias great diversity in terms of ethnic groups, cultures, languages, religions,

represents the acknowledgement of the importance of linking terrorism and human

comprehensive legal framework covering all aspects of the matter123.

Draft Convention on International Terrorism, available at http://cns.miis.edu/inventory/pdfs/intlterr.pdf.

UNGA, Measures to eliminate international terrorism (2010) UN Doc A/C.6/65/L.10 p. 17

In 2004 the Ad Hoc Committee in charge of drafting the Comprehensive

(c) Contributes to the commission of one or more offences as set forth in

See supra Part II-A-1.

third-rate convention as regards human rights protection. Nevertheless, even if the

Prevention of Discrimination and Protection of Minorities became concerned by the

Vous aimerez peut-être aussi